32 Collier bankr.cas.2d 38, Bankr. L. Rep. P 77,567 in Re Salvatore J. Mazzeo, Debtor. Salvatore J. Mazzeo v. United States of America and New York State, New York State Department of Taxation and Finance, Creditor, Marianne De Rosa, Trustee32 Collier bankr.cas.2d 38, Bankr. L. Rep. P 77,567 in Re Salvatore J. Mazzeo, Debtor. Salvatore J. Mazzeo v. United States of America and New York State, New York State Department of Taxation and Finance, Creditor, Marianne De Rosa, Trustee
Michelle B. O‘Connor, Attorney, Tax Division, Department of Justice, Washington, DC (Loretta C. Argrett, Assistant Attorney General, Gary D. Gray, Attorney, Tax Division, Washington DC, Zachary W. Carter, United States Attorney, Brooklyn, NY, on the brief), for Defendant-Appellee United States.
Steven U. Teitelbaum, Deputy Commissioner of Taxation & Finance, Kew Gardens, NY (Elizabeth Rosenblum, of counsel), filed a brief for Defendant-Appellee New York State.
Before: KEARSE, McLAUGHLIN, and GODBOLD*, Circuit Judges.
KEARSE, Circuit Judge.
Plaintiff Salvatore J. Mazzeo appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, affirming an order of the United States Bankruptcy Court for the Eastern District of New York, Dorothy Eisenberg, Judge, which dismissed his petition filed under
Most of the pertinent facts are undisputed. During 1993 and 1994, Mazzeo was president of Westfield Financial Corporation (“Westfield” or the “company“); he was also, in the words of his attorney, a “significant” minority shareholder. During that period, Westfield filed quarterly returns with the Internal Revenue Service (“IRS“) and the State‘s Department of Finance. On those returns, an employer is to report the amounts it has withheld from its employees’ wages pursuant to its statutory obligations, see
Quarterly returns filed by Westfield with the State for 1993 and part of 1994 showed that the company had withheld various amounts for State income tax. For the four quarters of 1993 and for the first and third quarters of 1994, the total withheld was $404,492.88. (The record is silent with respect to the other two quarters of 1994.) Each return showed that there were no payments or credits toward the indebtedness, and it is undisputed that these moneys were never paid. The returns were signed by Mazzeo, who thereby certified their correctness.
Westfield also filed quarterly tax returns with the IRS. Its federal return for the first quarter of 1994, signed by Mazzeo under oath, showed the total taxes the company owed the federal government for that period, of which $340,724.93 constituted amounts withheld from employees’ wages for federal income tax and FICA. It is undisputed that the withheld amounts were never paid to the United States.
If an employer does not pay withheld taxes as required, both federal and State law impose responsibility for payment on individuals who could have caused the employer to pay those taxes (“responsible-person” liability). The Internal Revenue Code imposes personal liability for such unremitted withholding taxes upon “[a]ny person required to collect, truthfully account for, and pay” the tax, who “willfully fails” to pay it.
On September 22, 1995, the State sent Mazzeo a notice of deficiency in the amount of $381,451.99 for Westfield‘s unpaid withholding taxes with respect to 1993 and the first and third quarters of 1994, asserting that Mazzeo, Westfield‘s president, was a responsible person with respect to those taxes. The State apparently arrived at that amount “by taking the amount of tax due on each of the withholding tax returns signed and filed by Mazzeo and adding these amounts together to arrive at a total tax due of $381,451.99.” (State brief on appeal at 11.) Under New York law, the notice of deficiency, unless contested by the filing of a petition for redetermination, was to become an assessment after 90 days. See
Defendants eventually filed their respective proofs of claim in bankruptcy court. The State asserted its claim of $381,451.99 as Mazzeo‘s responsible-person liability under
Mazzeo commenced the present adversary proceeding pursuant to
The United States, joined eventually by the State, moved to dismiss Mazzeo‘s Chapter 13 petition and the adversary proceeding on the ground that his noncontingent, liquidated, unsecured debts exceeded $250,000, and therefore were above the ceiling provided by
Mazzeo opposed the motion to dismiss, arguing that no federal or State assessment had ever been issued against him and that there had been no determination that he was a responsible person with respect to Westfield‘s withholding taxes. He contended that his responsible-person liability was therefore unliquidated and was contingent upon such a determination, and hence that the responsible-person debts asserted by defendants were not countable toward
The bankruptcy court rejected Mazzeo‘s arguments and granted defendants’ motion to dismiss the petition. The court ruled that Mazzeo‘s noncontingent, liquidated, unsecured debts, including the tax debts to the federal and State governments and certain other disputed claims, exceeded $250,000.
Mazzeo appealed to the district court, which, in a Memorandum and Order dated December 3, 1996, reported at 213 B.R. 625 (E.D.N.Y. 1996), affirmed without including in the tally the claims of creditors other than the United States and the State. The district court ruled that the State‘s withholding tax claim and the unsecured portion of the federal claim with respect to Mazzeo‘s own income tax were noncontingent and liquidated, and that the total of those claims alone was above the ceiling set by
For purposes of this decision, this Court need not address any claims other than the tax claims, the New York portion of which far exceeded the $250,000 amount and the IRS’ additional $113,857.28 together with an additional $989,491.22 unsecured priority claim.
There was nothing contingent about the appellant‘s State tax liability at the time of filing of his petition, and the amount of this liability is liquidated. It is based upon the actual signed returns with the agreed upon amounts, under oath and filed by the appellant, as President of his corporate employer. No computation is required at all. The same is true of the federal tax liens for Mazzeo‘s unpaid prior taxes. “Liquidated” denotes the ability to readily and precisely compute the amount due; the test is whether the amount “is capable of ascertainment by ... simple computation.” In re Sylvester, 19 B.R. 671, 673 (9th Cir. BAP 1982). Several courts have determined that a claim is unliquidated only when a court cannot determine the amount of the claim without an evidentiary hearing....
“Contingent” denotes a debt for which liability depends upon the occurrence of some future event or condition which may never be fulfilled.... A claim is not contingent if it has come into existence and is capable of being enforced at the time the petition is filed....
....
It is irrelevant that the appellant disputes the amount or the fact that he is a responsible person. Such disputes do not render the amount unliquidated or the responsible person determination contingent. There is nothing contingent or unliquidated about the $381,451.99 which he owed to the [State], or his liability for the debt on the date of the petition and there is nothing contingent or unliquidated about the $113,857.28 which appellant owed to the IRS or his liability therefor.
213 B.R. at 627. This appeal followed.
II. DISCUSSION
On this appeal, Mazzeo pursues his contentions (1) that his liability under the responsible-person statutes is contingent because, he argues, such liability does not arise until an administrative assessment has been issued or until there has been a judicial finding as to the existence and extent of such liability; and (2) that his responsible-person liability is unliquidated, principally because he disputes it. Mazzeo also argues that his federal responsible-person liability is unliquidated because the United States described that liability as “[e]stimated.” For the reasons stated in Part A below, we do not address this last argument; for the reasons stated in Part B, we conclude that Mazzeo‘s other contentions are without merit substantially for the reasons stated in the district court‘s opinion.
A. The Scope of Our Review
An order of a district court functioning in its capacity as an appellate court in a bankruptcy case is subject to plenary review. See, e.g., In re Best Products Co., Inc., 68 F.3d 26, 29 (2d Cir.1995). Thus, we ” ‘independently review the factual determinations and legal conclusions of the bankruptcy court.’ ” In re Momentum Manufacturing Corp., 25 F.3d 1132, 1136 (2d Cir.1994) (quoting In re PCH Associates, 949 F.2d 585, 597 (2d Cir.1991)). Since we are reviewing the order of the district court, however, we will normally review the bankruptcy court‘s rulings only to the extent that the district court itself passed upon them.
In the present case, the bankruptcy court‘s ruling that Mazzeo is not eligible to proceed under Chapter 13 was based on that court‘s inclusion of (a) his responsible-person liability to the State, (b) his responsible-person liability to the federal government, (c) his liability for sums due with respect to his own federal income tax, and (d) his liability on disputed claims asserted by other creditors. The district court, however, did not consider claims other than those asserted by the governments. Further, it did not base its affirmance on Mazzeo‘s responsible-person liability to the United States. Rather, it found only that the $250,000 ceiling was exceeded by Mazzeo‘s responsible-person debt to the State ($381,451.99) and the unsecured portion of his debt to the federal government with respect to his own income taxes ($113,857.28). Because the State‘s claim alone exceeds the statutory maximum, and the federal claim with respect to Mazzeo‘s own income tax does not, and because, for the reasons discussed below, we conclude that the district court‘s ruling was correct, we limit our discussion to Mazzeo‘s debt to the State for responsible-person liability.
The criteria for eligibility to proceed under Chapter 13 are set forth in
[o]nly an individual ... that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 ... may be a debtor under chapter 13 of this title.
The term “debt” is defined simply as “liability on a claim.”
right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.
The Code‘s “definition [of ‘debt’ in terms of ‘claim‘] reveals Congress’ intent that the meanings of ‘debt’ and ‘claim’ be coextensive.” Davenport, 495 U.S. at 558, 110 S.Ct. at 2130-31; see In re Villarie, 648 F.2d 810, 812 (2d Cir.1981) (the terms claim and debt are “coterminous“). That interpretation is confirmed by legislative history stating that ” ‘[t]he terms “debt” and “claim” are coextensive: a creditor has a “claim” against the debtor; the debtor owes a “debt” to the creditor.’ ” In re Knight, 55 F.3d 231, 234 (7th Cir.1995) (quoting
As is apparent, Congress chose expansive language in both definitions.... For example, to the extent the phrase “right to payment” is modified in the statute, the modifying language (“whether or not such right is ...“) reflects Congress’ broad rather than restrictive view of the class of obligations that qualify as a “claim” giving rise to a “debt.”
Davenport, 495 U.S. at 562, 110 S.Ct. at 2132-33. In sum, by defining “claim” so broadly and by defining “debt” in terms of “claim,” Congress has “adopt[ed] the ‘broadest possible’ definition of ‘debt‘.” Id. at 564, 110 S.Ct. at 2133-34. In light of the Code‘s definitions, therefore, the term “debt” is sufficiently broad to cover any possible obligation to make payment, whether that obligation is liquidated or unliquidated, fixed or contingent, disputed or undisputed, and whether or not it is embodied in a judgment.
With respect to the meanings of the words “liquidated” and “noncontingent” as modifiers of “debts” in
It is generally agreed that a debt is contingent if it does not become an obligation until the occurrence of a future event, but is noncontingent when all of the events giving rise to liability for the debt occurred prior to the debtor‘s filing for bankruptcy. See, e.g., In re Knight, 55 F.3d at 236; In re Nicholes, 184 B.R. 82, 88 (9th Cir. BAP 1995); Brockenbrough v. Commissioner, 61 B.R. 685, 686-87 (W.D.Va.1986); In re All Media Properties, Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff‘d, 646 F.2d 193 (5th Cir.1981); 2 L. King, Collier on Bankruptcy p 109.06[b] (15th ed. rev.1997).
A claim is contingent as to liability if the debtor‘s legal duty to pay does not come into existence until triggered by the occurrence of a future event.... [A] creditor‘s claim is not contingent when the “triggering event” occurred prior to the filing of the chapter 13 petition.
Id. Thus, a contingent debt is “one which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger ... liability.” Brockenbrough v. Commissioner, 61 B.R. at 686.
We cannot view a debt as contingent merely because the debtor disputes the claim, for that would make the word “contingent,” in the definition of “claim,” redundant. See generally In re Nicholes, 184 B.R. at 89 (“even a bona fide dispute over liability for a claim does not make the debt contingent“); id. (“Debts of a corporation listed on an individual debtor‘s schedules are not rendered contingent simply because the individual debtor‘s liability for the corporation‘s debts is at issue.“). Nor, by a future “event,” do we refer to a judicial determination as to liability and relief, for a claim may be noncontingent even though it has not been reduced to judgment. See
A taxpayer‘s duty to pay taxes derives from statute and arises upon his nonpayment of the taxes when due. The obligation to pay is not contingent on any extrinsic event. Although the taxing body may be required to issue an assessment before it may enforce the tax liability through administrative, rather than judicial, procedures, the absence of such an assessment does not make the debtor‘s obligation contingent. See, e.g., Goldston v. United States, 104 F.3d 1198, 1200-01 (10th Cir.1997); see also In re Knight, 55 F.3d at 236 (where debtor‘s liability for prebankruptcy events was established by statute, debt was not contingent). Thus, in a case involving an individual debtor‘s liability to the federal government for a corporation‘s unpaid withholding taxes, the court in Brockenbrough v. Commissioner noted that
[t]he debtor‘s liability to the IRS was “triggered” by his failure to pay over the unemployment [sic ] taxes collected from the corporation‘s employees—an event which occurred before the filing of the bankruptcy petition, so that the debt was, therefore, not contingent at the filing of the petition.
61 B.R. at 686-87. The fact that the taxing authority may attempt to collect the withheld taxes from the corporation rather than from a responsible person does not make the debt contingent, for if the tax has not been paid, the statute makes the responsible person unconditionally liable. See, e.g., Bradley v. United States, 936 F.2d 707, 710 (2d Cir.1991) (personal liability is “separate and distinct“); Hochstein v. United States, 900 F.2d at 549; see also United States v. Huckabee Auto Co., 783 F.2d 1546, 1549 (11th Cir.1986) (“IRS need not pursue collection from the employer prior to assessing a responsible person under
In the present case, Mazzeo‘s debt to the State was plainly noncontingent. Westfield withheld the requisite taxes from its employees’ wages; Mazzeo, in signing the company‘s returns, certified that there were no payments or credits toward the indebtedness; and it is undisputed that the taxes were not paid. A responsible person‘s liability for unpaid withholding taxes is imposed by statute. Mazzeo, Westfield‘s president, either was a responsible person or he was not; but his status did not depend on any event that had not occurred prior to the time he filed his Chapter 13 petition. We conclude that his debt to the State, though disputed, was not contingent.
2. The meaning of “liquidated”
The terms “liquidated” and “unliquidated” generally refer to a claim‘s value (and the size of the corresponding debt) and the ease with which that value can be ascertained. See, e.g., United States v. Verdunn, 89 F.3d 799, 802 (11th Cir.1996); In re Knight, 55 F.3d at 235; In re Fostvedt, 823 F.2d 305, 306 (9th Cir.1987). “The concept of liquidation for purposes of
Thus, the “courts have generally held that a debt is ‘liquidated’ ... where the claim is determinable by reference to an agreement or by a simple computation.” 2 L. King, Collier on Bankruptcy p 109.06[c] (15th ed. rev.1997); see, e.g., In re Knight, 55 F.3d at 235 (debt is liquidated if its value “has been ascertained or can readily be calculated“); In re Fostvedt, 823 F.2d at 306 (debt is liquidated if it is “subject to ready determination and precision in computation of the amount due” (internal quotation marks omitted)); In re Nicholes, 184 B.R. at 89 (“The test for ‘ready determination’ is whether the amount due is fixed or certain or otherwise ascertainable by reference to an agreement or by a simple computation.“). A claim plainly is liquidated if its amount is made certain “by operation of law.” United States v. Verdunn, 89 F.3d at 802.
A few courts have held that the existence of a dispute, without more, is sufficient to render a claim unliquidated. See, e.g., In re Lambert, 43 B.R. 913, 921 (Bankr.D.Utah 1984) (stating that a dispute as to liability renders the entire debt unliquidated, and that a dispute as to a particular amount renders the disputed amount unliquidated); In re King, 9 B.R. 376, 378 (Bankr.D.Or.1981) (stating that “a debt is not liquidated if there is a substantial dispute regarding liability or amount“). The “overwhelming body of precedent,” however, is to the contrary. United States v. Verdunn, 89 F.3d at 802 n. 9 (“Most courts have concluded ... that disputed debts are included in the calculation of the amount of debt for [Chapter 13] eligibility purposes.... [T]he vast majority of courts have held that the existence of a dispute over either the underlying liability or the amount of a debt does not automatically render the debt either contingent or unliquidated.” (internal quotation marks omitted)). We agree with the majority position. The Code uses both “unliquidated” and “disputed” in its definition of “claim“; to rule that a claim (and hence the debt with which it is coextensive) is unliquidated whenever it is disputed would be to render the term “unliquidated” mere surplusage. Such an interpretation would also allow a debtor, simply by characterizing certain claims as disputed, to ensure his eligibility to proceed under Chapter 13 in circumstances that Congress plainly intended to exclude from that chapter. We conclude that effect must be given to both terms, and we agree with the Eleventh Circuit that “the concept of a liquidated debt relates to the amount of liability, not the existence of liability.” United States v. Verdunn, 89 F.3d at 802.
CONCLUSION
In sum, where an unsecured claim, though disputed, is both noncontingent and liquidated, the debt that is coextensive with that claim must be included in the calculation that determines the debtor‘s Chapter 13 eligibility. Since no further event was required to trigger Mazzeo‘s responsible-person liability to the State, and since the amount of that liability was easily ascertainable from the filed tax returns, his dispute as to the applicability of the responsible-person statute to him does not make his debt to the State either contingent or unliquidated.
We have considered all of Mazzeo‘s arguments on this appeal and have found in them no basis for reversal. The order of the district court affirming the bankruptcy court‘s dismissal of the Chapter 13 petition is affirmed.